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Justices Back Ban on Method of Abortion

WASHINGTON, April 18 — The Supreme Court reversed course on abortion on Wednesday, upholding the federal Partial-Birth Abortion Ban Act in a 5-to-4 decision that promises to reframe the abortion debate and define the young Roberts court.

The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.

The decision, the first in which the court has upheld a ban on a specific method of abortion, means that doctors who perform the prohibited procedure may face criminal prosecution, fines and up to two years in prison. The federal law, enacted in 2003, had been blocked from taking effect by the lower court rulings that the Supreme Court overturned.

The banned procedure, known medically as “intact dilation and extraction,” involves removing the fetus in an intact condition rather than dismembering it in the uterus. Both methods are used to terminate pregnancies beginning at about 12 weeks, after the fetus has grown too big to be removed by the suction method commonly used in the first trimester, when 85 percent to 90 percent of all abortions take place.

While the ruling will thus have a direct impact on only a relatively small subset of abortion practice, the decision has broader implications for abortion regulations generally, indicating a change in the court’s balancing of the various interests involved in the abortion debate.

The decision was a major victory for the Bush administration and its vigorous defense of the law, which President Bill Clinton had vetoed twice before President Bush signed it.

Mr. Bush welcomed the ruling, saying: “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law.”

It was also a vindication for the strategic choice the anti-abortion movement made 15 years ago, when the prospect of persuading the Supreme Court to reconsider the right to abortion seemed a distant dream. [Page A23.]

By identifying the intact procedure and giving it the provocative label “partial-birth abortion,” the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses. In short order, 30 states banned the procedure.

The decision on Wednesday came seven years after the court struck down one of those state laws, from Nebraska. Justice Kennedy was a strong dissenter from that decision. With Justice Alito’s vote, he was in a position this time to write not for the dissenters but for the new majority.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas also voted in the majority. Justices Thomas and Scalia also filed a brief concurring opinion reiterating their opposition to the court’s abortion precedents and expressing their continued desire to overturn them.

Neither Chief Justice Roberts nor Justice Alito signed this statement. There was no way of knowing whether their silence meant they disagreed with it or whether, not having previously expressed their views as Justices Thomas and Scalia had, they had no need at this point to stake their ground.

The court did not explicitly overturn any of its precedents, although Justice Ruth Bader Ginsburg, writing for the four dissenters, said the decision was “so at odds with our jurisprudence” that it “should not have staying power.” Justice Ginsburg called the decision “alarming” and said the majority’s “hostility” to the right to abortion was “not concealed.”

Justices John Paul Stevens, David H. Souter and Stephen G. Breyer signed Justice Ginsburg’s opinion, portions of which she read from the bench at a slow pace that caused every syllable to resonate.

Justice Kennedy took pains to describe the decision as faithful to the court’s earlier rulings, including the one in the Nebraska case. He said that by defining the prohibited procedure more precisely, the federal law avoided the vagueness the court had found in the Nebraska statute and thus did not place doctors at risk of violating it inadvertently.

Congress passed the law in response to the court’s ruling in the Nebraska case, responding specifically to the majority’s insistence in that case that the law must include an exception for circumstances when the banned procedure was necessary for the sake of a pregnant woman’s health. Congress provided an exception only to save a pregnant woman’s life, as Nebraska had, declaring that the procedure was never necessary for a woman’s health.

Justice Kennedy, in addressing the need for the health exception, said on Wednesday that it was acceptable for Congress not to include one because there was “medical uncertainty” over whether the banned procedure was ever necessary for the sake of a woman’s health. He said that pregnant women or their doctors could assert an individual need for a health exception by going to court to challenge the law as it applied to them.

Justice Ginsburg said that this approach was unrealistic and “gravely mistaken.” She said that requiring “piecemeal” litigation “jeopardizes women’s health and places doctors in an untenable position.”

Clarke D. Forsythe, president of Americans United for Life, a leading anti-abortion group, said approvingly that while the court did not technically overturn the Nebraska decision, the new ruling “effectively gutted it.”

Dr. LeRoy H. Carhart, the Nebraska doctor who challenged both the state law in 2000 and the federal law in this case, Gonzales v. Carhart, No. 05-380, said that “those who support this law are trying to outlaw all abortions, one step at a time.”

In his discussion of the court’s precedents, Justice Kennedy went so far as to suggest that the new ruling was in fact compelled by the court’s decision in Planned Parenthood v. Casey, the 1992 case that reaffirmed the basic holding of Roe v. Wade that women have a constitutional right to abortion. Justice Kennedy supported that result and helped write the decision’s unusual joint opinion.

On Wednesday, he said that “whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion — that the government has a legitimate and substantial interest in preserving and promoting fetal life — would be repudiated were the court now to affirm the judgments of the courts of appeals” that struck down the federal law.

In describing the federal law’s justifications, Justice Kennedy said that banning the procedure was in fact good for women, protecting them against terminating their pregnancies by a method they might not fully understand in advance and would come to regret later.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said, adding: “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”

Justice Ginsburg objected vehemently that “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”

She cited century-old Supreme Court cases that upheld a paternalistic view of women’s place in society and contrasted those with more recent cases, including one she successfully argued to the court in 1977 and one in which she wrote the majority opinion in 1996, that rejected “archaic and overbroad generalizations” and assumptions about women’s inherent dependency.

One law professor, Martin S. Lederman of Georgetown University, commented after reading Justice Ginsburg’s response on this point that Justice Kennedy’s opinion “was an attack on her entire life’s work.”

In her opinion, Justice Ginsburg said the majority had provided only “flimsy and transparent justifications” for upholding the law, which she noted “saves not a single fetus from destruction” by banning a single method of abortion. “One wonders how long a line that saves no fetus from destruction will hold in face of the court’s ‘moral concerns,’ ” she said.

A version of this article appears in print on , on page A1 of the New York edition with the headline: IN REVERSAL OF COURSE, JUSTICES, 5-4, BACK BAN ON ABORTION METHOD. Order Reprints|Today's Paper|Subscribe